Who gets custody of the child?
It’s the subject of movies and TV dramas but all-too-often it’s also the subject of real-life dramas played out in New Mexico family law courtrooms, causing emotional turmoil for countless families during child custody cases.
There are no two ways about it. Child custody cases are some of the most stressful days of parents’ lives.
If a credible and workable parenting plan can be put forward, which is deemed to be in the best interests of the child(ren) and mutually acceptable to both parents, some of the difficulties can, at least, be avoided.
If a judge needs to decide how the child(ren) will be raised, it is a heavy responsibility and one that will not be taken lightly. It should be noted, however, that a judge’s ruling will only be in effect until there has been a substantial change in circumstances. At that time, the parents can revisit the issue of custody and visitation and, if necessary, go back to court
So, what do judges look for in child custody cases? How are cases decided? What should you, as one of the parents, expect?
How is custody decided in New Mexico family law courts?
The New Mexico family law courts are no different from any other family law court system in the U.S. in that the best interests of the child are the primary consideration in all judgments.
But what does this actually mean in the context of a child custody case?
The outcome is not entirely dependent upon the discretion of the judge. Specific guidelines are outlined in N.M.S.A. 1978, §40-4-9 (Standards for the determination of child custody), which help determine whether a custody arrangement is in the child’s best interests.
According to the statute, the court can consider the following factors, amongst others:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school, and community; and
(5) the mental and physical health of all individuals involved.
There is a presumption in New Mexico courts that it is in the best interest of the child(ren) for joint custody, where each parent has “significant, well-defined periods of responsibility for the child.”
There are clear guidelines laid out in N.M.S.A. 1978, §40-4-9.1 for determining whether joint custody is best and how the parenting plan can care for a child’s best interests.
The following factors may be considered in addition to those listed previously:
(1) whether the child has established a close relationship with each parent;
(2) whether each parent is capable of providing adequate care for the child throughout each period of responsibility, including arranging for the child’s care by others as needed;
(3) whether each parent is willing to accept all responsibilities of parenting, including a willingness to accept care of the child at specified times and to relinquish care to the other parent at specified times;
(4) whether the child can best maintain and strengthen a relationship with both parents through predictable, frequent contact and whether the child’s development will profit from such involvement and influence from both parents;
(5) whether each parent is able to allow the other to provide care without intrusion, that is, to respect the other’s parental rights and responsibilities and right to privacy;
(6) the suitability of a parenting plan for the implementation of joint custody, preferably, although not necessarily, one arrived at through parental agreement;
(7) geographic distance between the parents’ residences;
(8) willingness or ability of the parents to communicate, cooperate or agree on issues regarding the child’s needs; and
(9) whether a judicial adjudication has been made in a prior or the present proceeding that either parent or other person seeking custody has engaged in one or more acts of domestic abuse against the child, a parent of the child or other household member.
Does the court consider the child’s choice?
In most cases, the child’s wishes are important and, as you have seen, this is listed as one of the factors that the court can consider when determining “best interests”.
However, the age of the child helps determine how much weight may be given to the child’s preferred choices.
If a child is age 14 or older, their wishes must be considered by the court. That does not mean that the child has the final decision – only that the court should take their opinions and preferences into account when arriving at its decision.
If the child is under the age of 14 and the judge determines that he or she is mature enough to make a considered judgement, the court may also consider these choices and preferences.
However, for this to be the case, the judge will need to be satisfied that there has been no undue influence exerted on the child by one of the parents. Cases exist where one parent has tried to “turn” a child against the other parent or has bribed the child.
Note that the New Mexico court system generally avoids the prospect of minor children testifying in open court, as this is deemed too stressful. Instead, private testimony in the judge’s office is normally arranged with a court reporter present.
Types of child custody
In New Mexico, legal custody is defined as having the “authority and responsibility to make major decisions in a child’s best interests in the areas of residence, medical and dental treatment, education or child care, religion, and recreation.” Physical custody defines the visitation schedule each parent has with the child(ren).
It’s important to be aware of the concepts of “physical custody” and “legal custody”.
Legal custody
Legal custody is the responsibility to make decisions on behalf of a child, based on their needs.
This includes making decisions about:
- Education
- Health care
- Moral upbringing
- Religious practice
In the joint legal custody arrangements preferred by New Mexico courts, both parents have the right to contribute equally to these decisions.
If sole legal custody is granted to one parent, only that parent can make such decisions.
Physical custody
In New Mexico, physical custody is not a legal term, but is used sometimes to define visitation. Matters such as where children will live and who looks after them on weekends are defined in “Parenting Plans”. Parenting plans include language describing the legal custody arrangement as well as visitation schedules.
Almost always, courts want to see a parenting plan that includes a fair visitation schedule arrangement, whereby the child spends time with both parents.
However, a visitation schedule may vary based on the best environment for the child to spend their time in. The parents may have joint legal custody but the child’s best interests may be best served by spending more time with one parent than the other.
Do you need legal assistance with child custody?
Unfortunately, child custody cases can become complex and stressful.
If you need legal assistance and support, start by calling the child custody lawyers at New Mexico Legal Group at 505.876.9175 to arrange a free case evaluation.